Citation Nr: 0712006
Decision Date: 04/25/07 Archive Date: 05/01/07
DOCKET NO. 04-30 176 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona
THE ISSUES
1. Entitlement to service connection for a back disorder,
claimed as secondary to a left thigh disability.
2. Entitlement to service connection for allergies with
nasal polyps, claimed as vasomotor/allergic rhinitis.
REPRESENTATION
Appellant represented by: Arizona Department of Veterans
Services
ATTORNEY FOR THE BOARD
D. Bredehorst
INTRODUCTION
The appellant is a veteran who served on active duty from
June 1967 to January 1969. These matters are before the
Board of Veterans' Appeals (Board) on appeal from October
2002 and April 2003 rating decisions by the Phoenix RO. In
November 2006 the Board sought an advisory medical opinion in
the matter pertaining to the low back.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify the appellant
if further action on his part is required.
REMAND
Regarding the low back disability, in March 2007 (after the
Board secured a VHA medical advisory opinion in this matter),
the veteran submitted directly to the Board medical treatise
evidence directly to the Board without a waiver of RO
consideration of such evidence. The evidence is in the form
of medical journal articles that discusses how extended bed-
rest and prolonged casting may result in bone atrophy. The
articles are pertinent as the veteran contends that bed-rest
along with prolonged casting resulted in shortening of his
left leg, and that the shortening caused or contributed to
cause his current back disorder. Under governing case law,
the Board is obliged to remand the case for AOJ initial
consideration of the additional evidence. See Disabled
American Veterans, et al. v. Secretary of Veterans Affairs
(DAV), 327 F.3d 1339 (Fed. Cir. 2003).
Regarding the claim seeking service connection for
allergies/polyps/rhinitis, the veteran alleges such
disability was aggravated by his service. Notably,
aggravation of a preexisting condition may not be conceded
where the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §
3.306(b).
While a history of hay fever was noted in pre-induction
medical history, as well as at separation, the veteran's
service medical records are otherwise silent for pertinent
complaints, findings, diagnosis. In support of this claim
the veteran has submitted two private physicians' opinions
(without an explanation of supporting rationale) to the
effect that the disability was aggravated by the veteran's
service. Given that there is no explanation of the
rationale, but that there is evidence of current disability
and evidence relating the disability to service, an
examination for a medical advisory opinion in this matter is
necessary.
Accordingly, the case is REMANDED for the following action:
1. The RO should review the additional
evidence submitted by the veteran, as
well as the medical advisory opinion
secured by the Board, arrange for any
additional development suggested, and
readjudicate the claim seeking service
connection for low back disability in
light of the additional evidence
received.
2. The RO should also arrange for the
veteran to be examined by an appropriate
physician to determine whether any
allergy related disability, nasal polyps,
or rhinitis was incurred or aggravated in
service. The veteran's claims file must
be reviewed by the examiner in
conjunction with the examination. Based
on review of the claims file and
examination of the following, the
physician should provide an opinion that
includes responses to the following:
a) Based on the pre-induction and
separation notation of hay fever what of
the claimed disabilities (i.e.,
allergies, polyps, rhinitis) pre-existed
his service? Is there any objective
evidence that any pre-existing such
disability increased in severity beyond
natural progression during service? If
so, please identify the
pathology/symptoms that reflect the
increase.
b) Is there any medical evidence of
record supporting that allergies, nasal
polyps, or rhinitis were incurred in
service?
The examiner should explain the rationale
for all opinions given, and is asked to
comment on the opinions provided by the
veteran's private physicians.
3. The RO should then re-adjudicate the
claim seeking service connection for
allergies/nasal polyps/rhinitis.
4. If either claim remains denied, the
RO should issue an appropriate SSOC and
afford the veteran and his representative
the opportunity to respond. The case
should then be returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims
must be afforded expeditious treatment by the RO. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner.
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).